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HomeMy WebLinkAboutC-5871 - Encroachment Agreement EPN N2000-0121 for 1200 Cliff DriveRecorded in Official Records, County of Orange Gary Granville, Clerk -Recorder 111 ii1ii 1i1il 24, 00 20000211495 09.1 tam 04/125/00 107 23 Al2 7 0.00 0.00 0.00 0.00 18.00 0,00 0.00 0.00 Space above this line for Recorder's use only. ENCROACHMENT AGREEMENT (EPN2000-0121) THIS AGREEMENT is made and entered into this f f e -k day of 6kni , 2000, by and between David Earl Bueter (hereinafter "OWNER"), and the City of Newport Beach, California, a municipal corporation organized and existing under and by virtue of its Charter and the Constitution and the laws of the State of California, (hereinafter "CITY"), "OWNER" is the owner of property located at 1200 Cliff Drive, Newport Beach, California 92663 and legally described as Lot 46, Tract 1220, as shown on a map recorded in Book 38, Page 49 inclusively of Miscellaneous Maps in the office of the County Recorder of Orange County, California; and WITNESSETH: WHEREAS, OWNER desires to construct certain non-standard improvements (hereinafter "PERMITTED IMPROVEMENTS") within the Cliff Drive right-of-way (hereinafter "RIGHT-OF-WAY") that is located adjacent to Lot 46, Tract 1220, as shown on a map recorded in Book 38, Page 49, inclusively of Miscellaneous Maps in the office of the County Recorder of Orange County, California; also known as 1200 Cliff Drive, Newport Beach, California; and WHEREAS, said PERMITTED IMPROVEMENTS may interfere in the future with CITY'S ability to construct, operate, maintain, and replace CITY and other public facilities and improvements within RIGHT-OF-WAY; and �04ev WHEREAS; the parties hereto desire to execute an agreement providing for fulfillment of the conditions required by CITY to permit OWNER to reconstruct and maintain said PERMITTED IMPROVEMENTS; 1 RECORDING REQUESTED AND WHEN RECORDED RETURN TO ^-^- W Public Works Department City,of Newport Beach Post Office Box 1768 3300 Newport Boulevard Newport Beach, CA 92659-1768 Recorded in Official Records, County of Orange Gary Granville, Clerk -Recorder 111 ii1ii 1i1il 24, 00 20000211495 09.1 tam 04/125/00 107 23 Al2 7 0.00 0.00 0.00 0.00 18.00 0,00 0.00 0.00 Space above this line for Recorder's use only. ENCROACHMENT AGREEMENT (EPN2000-0121) THIS AGREEMENT is made and entered into this f f e -k day of 6kni , 2000, by and between David Earl Bueter (hereinafter "OWNER"), and the City of Newport Beach, California, a municipal corporation organized and existing under and by virtue of its Charter and the Constitution and the laws of the State of California, (hereinafter "CITY"), "OWNER" is the owner of property located at 1200 Cliff Drive, Newport Beach, California 92663 and legally described as Lot 46, Tract 1220, as shown on a map recorded in Book 38, Page 49 inclusively of Miscellaneous Maps in the office of the County Recorder of Orange County, California; and WITNESSETH: WHEREAS, OWNER desires to construct certain non-standard improvements (hereinafter "PERMITTED IMPROVEMENTS") within the Cliff Drive right-of-way (hereinafter "RIGHT-OF-WAY") that is located adjacent to Lot 46, Tract 1220, as shown on a map recorded in Book 38, Page 49, inclusively of Miscellaneous Maps in the office of the County Recorder of Orange County, California; also known as 1200 Cliff Drive, Newport Beach, California; and WHEREAS, said PERMITTED IMPROVEMENTS may interfere in the future with CITY'S ability to construct, operate, maintain, and replace CITY and other public facilities and improvements within RIGHT-OF-WAY; and �04ev WHEREAS; the parties hereto desire to execute an agreement providing for fulfillment of the conditions required by CITY to permit OWNER to reconstruct and maintain said PERMITTED IMPROVEMENTS; 1 NOW, THEREFORE, in consideration of the mutual promises, the parties hereto agree as follows: 1. It is mutually agreed that PERMITTED IMPROVEMENTS shall be defined as sand set Granite stone carriage walk, steps and appurtenances in the Cliff Drive right-of-way as shown on EXHIBIT "A" attached hereto and as approved by the City Engineer. In addition, the proposed PERMITTED IMPROVEMENTS may vary at the time of construction. Hence, any changes must be approved by the City Engineer and shall be shown on the "As Built" plans. 2. CITY will permit OWNER to construct, reconstruct, install, maintain, use, operate, repair and replace said PERMITTED IMPROVEMENTS and appurtenances incidental thereto, within a portion of RIGHT-OF-WAY, all in substantial conformance with plans and specifications on file in the CITY. CITY will further allow OWNER to take all reasonable measures necessary or convenient in accomplishing the aforesaid activities. 3. Rights granted under this Agreement may be terminated by CITY at any time by giving 60 days' notice, specifying in said notice the date of termination. CITY shall incur no liability whatsoever in the event of the termination of this Agreement, or subsequent removal of improvements by CITY. 4. OWNER and CITY further agree as follows: a. OWNER may construct and install PERMITTED IMPROVEMENTS and appurtenances incidental thereto, in substantial conformance with plans and specifications therefor on file in the CITY's Public Works Department, and as described on Exhibit "A" hereto attached. b. OWNER shall maintain the PERMITTED IMPROVEMENTS in accordance with general prevailing standards of maintenance, and pay all costs and expenses incurred in doing so. However, nothing herein shall be construed to require OWNER to maintain, replace or repair any CITY -owned pipeline, conduit or cable located in or under said PERMITTED IMPROVEMENTS, except as otherwise provided herein. c. If City or other public facilities or improvements are damaged by the installation or presence of PERMITTED IMPROVEMENTS, OWNER shall be responsible for the cost of repairs. d. That should CITY be required to enter onto said RIGHT-OF-WAY to exercise its primary rights associated with said RIGHT-OF-WAY, including but not limited to, the maintenance, removal, repair, renewal, replacement or enlargement of existing or future public facilities or improvements, CITY may remove portions of the PERMITTED IMPROVEMENTS, as required, and in such event: (i) CITY shall notify OWNER of its intention to accomplish such work, if any emergency situation does not exist. (ii) OWNER shall be responsible for arranging for any renewal or restoration of the PERMITTED IMPROVEMENTS affected by such work by CITY; (iii) CITY agrees to bear only the cost of any removal of the PERMITTED IMPROVEMENTS affected by such work by CITY; (iv) OWNER agrees to pay all costs for renewal or restoration of the PERMITTED IMPROVEMENTS. 5. In the event either party breaches any material provision of this Agreement, the other party at its option may, in addition to the other legal remedies available to it, terminate this Agreement, and, in the event the breaching party is OWNER, CITY may enter upon the RIGHT-OF-WAY and remove all or part of the improvements installed by OWNER. Termination because of breach shall be upon a minimum of ten (10) days' notice, with the notice specifying the date of termination. In the event of litigation commenced with respect to any term of condition of this Agreement, the prevailing party shall be entitled to reasonable attorneys fees and costs incurred. 6. OWNER shall indemn,., and hold harmless CITY, its ty Council, boards and commissions, officers and employees from and against any and all loss, damage, liability, claims, suits, costs and expenses whatsoever, including reasonable attorneys' fees (when outside attorneys are so utilized), regardless of the merit or outcome of any such claim or suit arising from or in any manner connected with the design, construction, maintenance, or continued existence of the PERMITTED IMPROVEMENTS. 7. OWNER agree that this Agreement shall remain in full force and effect from execution thereof; shall run with the land; shall be binding upon the heirs, successors, and assigns of OWNERS' interest in the land whether fee or otherwise, and shall be recorded in the Office of the County Recorder of Orange County, California. IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be executed on the day and year first -above written. APPROVED AS TO FORM: By: City Attorney AT - LOM City Clerk STATE OF CALIFORNIA ) CITY OF NEWPORT BEACH, a Municipal corporation •U► C By:Wor-4-J4 City Man ger By:�. David Earl Bueter CALIFORNIA ALL-PURPOSE ACKNOWLEDGMENT State of California ss. County of On Ll "� v before me, Date personally appeared G"3� a —got CATHY FISHER Commission # 1174329 Z Notary Public - California t~ Orange County a ?y Cnmm. Bcnires Feb 21,2M2 'r �,`-Q--s-, ND ' ❑ personally known to me X proved to me on the basis of satisfactory evidence to be the person( whose name(§'is re subscribed to the wit instrument and acknowledged to meat h she/they executed the same in his�er/their authorized capacity(i&'11Q, and that by his her/their signaturekon the instrument the person(4�/or the entity upon behalf of which the personal acted, executed the instrument. T�ESS my hand and pfficial seal. Place Notary Seal Above Signal e of N ary Public OPTIONAL Though the information below is not required by law, it may prove valuable to persons relying on the document and could prevent fraudulent removal and reattachment of this form to another document. Description of Attached Document Title or Type of Document:(�.f't�Ci-cJ'"►✓�''�'"'tt.vv�-+ Document Date: �' t �L l Number of Pages: Signer(s) Other Than Named Above: Capacity(ies) Claimed by Signer Signer's Name: ❑ Individual Top of thumb here ❑ Corporate Officer — Title(s): ❑ Partner — ❑ Limited ❑ General ❑ Attorney in Fact ❑ Trustee ❑ Guardian or Conservator ❑ Other: Signer Is Representing: 9 1997 National Notary Association - 9350 De Soto Ave., P.O. Box 2402 • Chatsworth, CA 91313-2402 Prod. No. 5907 Reorder: Call Toll -Free 1-800-876-6827 L CALIFORNIA ALL-PURPOSE ACKNOWLEDGMENT State of California ss. County of On 1� — \ 2 V , before me, Date personally appeared CATHY RSHER Commission # 1 174329 i Notary Public - Califomta Z Orange County My Comm. 50,es Feb 21, 2At)2 Place Notary Seal Above L. Name nd tle of Officer Vj (e.g., "Jane Yoe, Notary Public") 1 low) „J\�e . � olA, of Signer(s) personally known to me ❑ proved to me on the basis of satisfactory evidence to be the persor( s% whose names) is/re subscribed to the within instrument and acknowledged to me that he/s e the executed the sa in his/her thea authoriz capacity 'e and that y his/her/ hei signatur s) n the instrument the person s , Ar, the entity upon behalf of which the perso (s) acted, executed the instrument. I ESS my hand and o icial seal. Sign ture f NotaVj Pub is OPTIONAL Though the information below is not required by law, it may prove valuable to persons relying on the document and could prevent fraudulent removal and reattachment of this form to another document. Description of Attached ?cument CAr 11) a_j © 0 - 0 k 211—\Title or Type of Document: Q��nt_7�_ .4NrNP-AN-A v Document Date: LA — r�' Number of Pages: OC Signer(s) Other Than Named Above: �D P�r Capacity(ies) Claimed by Signer Signer's Name: ElIndividual Top of thumb here ❑ Corporate Officer — Title(s): ❑ Partner — ❑ Limited ❑ General ❑ Attorney in Fact ❑ Trustee ❑ Guardian or Conservator ❑ Other: Signer Is Representing: © 1997 National Notary Association • 9350 De Soto Ave., P.O. Box 2402 - Chatsworth, CA 91313-2402 Prod. No. 5907 Reorder: Call Toll -Free 1-800-876-6827